American Colonization Society v. Soulsby

Pattison, J., delivered the opinion of the Court. The appeals in these cases are from an order of the Circuit Court of Baltimore City overruling the appellants’ demurrer to the amended petition of the appellees. As the demurrers assail the sufficiency of the petition, it will be necessary for us to state fully the facts alleged in the petition. These facts are substantially as follows: On June 22, 1886, Caroline Donovan, then eighty-two years of age, executed a “declaration of trust,” which was on the following day duly recorded among the Land Records of Baltimore City.

This declaration of trust is in the following words, to wit: “Whereas I, Caroline Donovan, of the State of Maryland, am possessed of certain real estate in the City of Baltimore * * * which at present is occupied by warehouses numbered, respectively, 85, 87, 89, 91, 93 and 95 South Charles street, at the northeast corner of ⁶⁰⁷ Charles and Camden streets; and whereas, for divers consideration me thereunto moving I intend that the American Colonization Society shall have the benefit of said real estate to the extent and in the manner hereinafter described; How, therefore, that the said Society may he at once informed of the above intention, and become possessed of a vested interest in the property aforesaid beyond peradventure, to this end I do hereby declare that I hold the above property in trust for myself during my natural life, I receiving the rents and income thereof as though this declaration of trust had not been made. And after my death then in trust for Ferdinand 0. Latrobe and James ~W. Harvey, Jr., and the survivor of them, and the heirs and assigns of the survivor, in special trust and confidence, nevertheless, to pay to the American Colonization Society the net income, rents and profits of the said real estate ascertained under the supervision of a court of equity, for the transportation annually to Liberia of such colored persons as may desire to emigrate to that country, the said trustees and the survivor, and the heirs and assigns of the survivor, to have the power, should the interest of the trust so require, by and with the approbation ' and consent of a court of equity first had and obtained, to sell and dispose of the said property, or any portion thereof, from time to time, for reinvestment, with the approbation of the court of such reinvestment, for the purposes that are herein expressed and declared. And if in any year the transportation of colored persons for that year should not require the net income of the said property for the same year, such income, or any balance remaining, shall he appropriated by the said Society to the maintenance of public schools for the education of colored children in Liberia.” * Caroline Donovan died on March 5, 1890, without issue, leaving a, last will and testament executed on the day before her death, in which she, after confirming a gift of her furniture previously made to one of her nieces, directed that her ⁶⁰⁸ entire estate should he converted into cash by her executors, of which she bequeathed to the Washington Lee University of the State of Virginia, the sum of $10,000; and to the Little Sisters of the Poor of Baltimore City the -sum of $1,000.

She then directed that: “All the rest and residue of the proceeds from the sale of my estate as above directed, together with all rents, income, profits, cash left by me, and the proceeds of all debts, dues and credits that may be collectible or converted into money without sale, I hereby authorize and direct my said executors to divide into nine equal parts, and one of said parts I give and bequeath absolutely to each one of my several nephews and nieces, following namely, to Carrie M. Crowle, John D. Crowle, Emily P. Edmundson, Laura Wamaling, Charles T. Wamaling, Lewis E. Wamaling, Prances Wamaling, Charles Soulsby and Eobert Soulsby, that is to say, to each one of them one part or one-ninth of the whole.” The American Colonization Society named in the declaration of trust as alleged in the petition, started in December, 1816, but was first incorporated by an Act of the General Assembly of Maryland passed at its December Session of 1831. That Act was repealed and a new charter granted by the Act of 1836, passed March 14, 1837. The corporation was empowered by the latter Act: “to purchase, have and enjoy to them and their successors in fee or otherwise any lands, tenements or hereditaments by the gift, bargain, sale, devise or other act of any person or persons, etc., to take and receive any sum or sums of money, goods or chattels that shall bb given, sold or bequeathed to them in any manner whatsoever; to occupy, use and enjoy or sell, transfer or otherwise dispose of according to the by-laws, etc., all such lands, tenements or hereditaments, money, goods or chattels as they (the corporation) shall determine to be most conducive to the colonizing, with ⁶⁰⁹ their own consent in Africa, of the free people of color residing in the United States, and for no other use or purpose whatsoever.” Upon the death of Caroline Donovan her will was pro-hated, and six days thereafter the trustees, filed their petition in the Circuit Court of Baltimore City, alleging the execution of the declaration of trust, with the provisions therein contained, the death of Caroline Donovan and the rig’ht of the American Colonization Society, in consequence of her death to the. rents and profits mentioned in the declaration of trust; and concluded by asking the Court to supervise the execution of the trust. The Society filed its answer thereto, admitting the facts alleged in the petition and consenting to the passage of a decree as prayed.

The Court thereupon filed its order assuming supervision of the trust, and in such order it directed that Ferdinand C. Latrobe and James W, ITarvey, Jr., trustees, “report annually to the Court during the continuance of the trust.” The rents derived from the warehouses have ever since been collected by the trustees and the net rents paid to the American Colonization Society. It is charged by the petitioners that the trust attempted to he created is void because vague and indefinite and in conflict with the rule against perpetuities: “that it is void also because it is not within the corporate powers cr purposes of said American Colonization Society to maintain ‘public schools for the education of colored people in Liberia/ because the maintenance of such schools is in no way connected with the colonizing in Africa, of the free people of color residing in the United States, and because the maintenance of public schools in Liberia for the education of colored children would necessarily he largely devoted in the future to the education of colored natives of Liberia whose ancestors were never in the United States.” And if this feature of the ⁶¹⁰ trust which is so inseparably connected with the provision authorizing the expenditure of the net income, rents and profits of the real estate, for the transportation annually to Liberia, of such colored persons as may desire to emigrate to that country, is void, then this latter provision is also void, thereby making the entire trust void. The petitioners charge, however, that, if the trust was ever valid, it is no longer a valid subsisting trust inasmuch as its objects and purposes can no longer be accomplished. In support of this change they allege that the American Colonization Society has always expressed difficulty in getting negroes of a reputable character to colonize in Africa, which fact it is said is borne out by its reports issued from time to time.

Its report of 1894 calls attention to the fact that there are few remunerative employments in Liberia, and in its report for the year 1901 it said that: “Liberia, like every other state, needs good citizens * * * but this Society cannot take the responsibility of sending any emigrants to Liberia unless they have proved themselves to be men and women of good character, of intelligence, of at least an elementary education, industrious and persevering. But how can such a class of emigrants be obtained? Your committee would suggest that our honored Secretary be author- . ized to correspond with the principals of a large number of the most reputable African seminaries in this country and the management of our principal religious denominations, and to ask them to recommend such of their pupils as may possess the very highest moral and religious qualifications and who may wish to take up their residence in Liberia. And that from these pupils the selection to be made of such a number as it may be , thought desirable to send to Africa during the coming year.” In the same report is found the statement that: “There have been many applications for assistance in emigrating to Liberia during the past season.

Most ⁶¹¹ of them, however, have been from the same class of people as for this purpose has sought the assistance of this Society during the past few years. They appear to think that a residence in Africa will furnish them with all that is desirable in life. We think that people who cannot do well in this country cannot reasonably expect to do better in Africa, and we are obliged to inform them that this Society is no longer the recipient of large sums for the purpose of sending colonists to Africa. Such contributions have long since ceased to come into our treasury, and we now have only such funds as have come to us for special purposes, and chiefly for education.

During the past year the Society has sent out three negroes to Liberia.” The reports show as it is alleged, that the transportation of negroes from this country to Liberia came entirely to an end. As shown by the reports of 1905 and 1906 not a single colored person was transported to .Liberia during either of those years, while the report of 1907 shows that a man and his wife were sent over in that year, but none were transported in either of the years 1908 and 1909 as shown by the reports of those years. It is alleged that since 1909 no public report of the operations of the society have been issued and therefore the petitioners have no knowledge of what has been done since that time, although they have asked the society for information, but have received none. The cost of sending an emigrant to Liberia was from $65 to $75, it being the cost of a steerage passenger from Hew York via Liverpool to Liberia.

The petition alleges that, as indicated by the reports of the society, the amount paid by the trustees to it during the years 1893 to 1909 was $63,362.36, an average for each of the seventeen years of $3,727.19 and during these years the total amount expended by the society for the transportation of colored people from this country to Liberia was $4,76$.32. This amount, the petitioners be^ lieve, and so allege, was the total sum expended by the ⁶¹² society for this purpose received from all sources. During this same period the reports show, there was expended by the society for the education of negroes in Liberia the sum of $15,598.16, which included all money expended by the Society, whether received from the Donovan Trust or otherwise, and the average amount expended in each of these years was $917.54. It is thus shown, as the petitioners allege, that the total average amount for the transportation of negroes and for the education of negroes in Liberia amounted to $1,198.03 annually, which was $2,529.16 less per year than the alleged amount received from the trustees from the Donovan trust, as the average annual income from that fund was $3,727.19.

Or stating the matter* in another way, the receipts of the American Colonization Society from the “Donovan trust” in these 17 years exceeded by $42,995.88 the total amount expended by the Society for the two objects named in the declaration of trust. The office expenses of the Society as shown by the reports during these seventeen years averaged more than $3,000, no part of which the petitioners allege should have been borne by the Donovan fund. It is shown that the income of the society from securities other than the income received from the Donovan trust estate amounted to $2,236.22, not including the income for that year, of $1,236, received from the building owned by the society on Pennsylvania avenue, in the City of Washington. The petition further alleges that in the last printed report, as stated above, the interest on securities put down at $2,236.22 would indicate a principal of invested funds held by the society of about $45,000, or an increase of about $28,000 above the amount stated to be held by it in 1893.

The petitioners also allege that so far as they have been able to discover, the American Colonization Society has at no time made any public statement of what has been done with the money received from the trustees of Mrs. Caroline Donovan. In fact, “the reports of the society do not even mention the name of Mrs. Donovan until the year 1908, when for the ⁶¹³ first time the money received from the trustees' in Baltimore is put down under the name of ‘.Donovan.’ Before that time the money so received was put under the head of ‘Annuities,’ although apparently kept separate and distinct from others received.” It further alleges that the petitioners “acting through their attorney, have asked the society to give a full statement of the money received and expended for the years 1910 to 1915, similar to the statements that were printed before 1910. But the treasurer of the society has informed your petitioners' attorney that until a meeting of the directors of the society can take place in the fall, he is not in a position either to grant or refuse the request as made.” It is also stated, as indicating that the activity of the American Colonization Society have been greatly curtailed in recent years, that the publication of the “African Repository,” an official paper of the society, has been discontinued for want of subscribers. After discontinuing its publication, bulletins were regularly issued from time to time, these, too, have apparently been discontinued, and as we have said, the annual printed reports showing the operations of the society ceased with the year 1909.

The office of the society is said to be 515 Colorado Bldg., in the City of Washington. This is shown by the statement on its letter paper, but upon examination it